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Thursday, June 04, 2020

When lawyers refuse to defend accused: what is the law, what SC has said

The Hubli Bar Association submitted that it would take back a resolution it had passed on February 15; on Friday, the High Court asked the association to place on record a resolution withdrawing the earlier one.

Written by Sadaf Modak | Mumbai | Updated: March 7, 2020 3:50:48 pm
Karnataka High Court, Karnataka sedition case, Karnataka youths sedition case, Kashmir youths sedition case Karnataka, Karnataka Bar Association, Express Explained, Indian Express The Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court.

Last month, the Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court. This was after local bar associations had objected to four students arrested for sedition being defended in court. The Hubli Bar Association submitted that it would take back a resolution it had passed on February 15; on Friday, the High Court asked the association to place on record a resolution withdrawing the earlier one.

This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.

What does the Constitution say about the right of an accused to be defended?

Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice. Article 14 provides for equality before the law and equal protection of the laws within the territory of India. Article 39A, part of the Directive Principles of state policy, states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.

What has the Supreme Court said about such resolutions by bar associations?

In 2010, a Supreme Court Bench of Justices Markandey Katju and Gyan Sudha Mishra dealt with the illegality of such resolutions (A S Mohammed Rafi vs State of Tamil Nadu, also referred to by the Karnataka High Court last month).

The 2010 case arose from a confrontation between a lawyer and policemen in Coimbatore in 2006, after which lawyers passed a resolution to not allow any lawyer to represent the police personnel. The Madras High Court ruled this “unprofessional”, after which lawyers appealed in the Supreme Court.

The Supreme Court referred to writer Thomas Paine, who had been tried for treason in England in 1792. Thomas Erskine, Attorney General for the Prince of Wales, was warned of dismissal if he defended Paine, but still took up the brief, saying: “… If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge…” The Supreme Court cited other historical examples of accused being defended — revolutionaries against British rule; alleged assailants of Mahatma Gandhi and Indira Gandhi; Nazi war criminals at the Nuremberg trials.

The Supreme Court ruled: “In our opinion, such resolutions are wholly illegal, against all traditions of the bar and against professional ethics. Every person, however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly, it is the duty of the lawyer to defend him.” It said such resolutions were “against all norms of the Constitution, the statute and professional ethics”, called these “a disgrace to the legal community”, and declared them null and void.

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How are professional ethics of lawyers defined?

The Bar Council of India has Rules on Professional Standards, part of the Standards of Professional Conduct and Etiquette to be followed by lawyers under the Advocates Act. An advocate is bound to accept any brief in the courts or tribunals, at a fee consistent with his standing at the Bar and the nature of the case.

The Rules provide for a lawyer refusing to accept a particular brief in “special circumstances”. Last year, The Uttarakhand High Court clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the bar association.

How frequent are resolutions not to defend an accused?

Various bar associations across the country have passed such resolutions over the years. Among the prominent cases:

* After the 2008 terror attack in Mumbai, a resolution was passed against representing Ajmal Kasab. A Legal Aid lawyer was assigned the brief but he refused, while another who agreed to defend Kasab faced threats. Subsequently, a lawyer was appointed and given police security.

* After the 2012 gangrape in Delhi, lawyers in Saket court passed a resolution not to defend the accused.

* In Hyderabad last year, the Bar Association passed a resolution against representing four men who had been arrested for the rape and murder of a veterinary doctor, and who were later killed in an alleged encounter.

* In 2017, the Supreme Court directed lawyers of the Gurgaon District Bar Association not to obstruct any lawyer defending the accused in the murder of a seven-year-old schoolboy.

Have lawyers faced action for such resolutions?

A writ petition was filed in the Uttarakhand High Court after the Kotdwar Bar Association passed a resolution stating that anyone who represented the accused in the murder case of an advocate would have their membership of the Bar terminated. The court held the resolution null and void. It directed the State Bar Council to initiate action against office-bearers of the Bar Association if such resolutions were passed in the future. It also said that action under Section 15(2) of the Contempt of Courts Act, 1971, can be considered against advocates who interrupt court proceedings.

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